The Gazette 1985

GAZETTE

JULY/AUGUST 1985

be void and be incapable of being registered under those Acts. (2) For the purposes of Sub-Section (1) and of any enactment repealed by this Act, a Floating Charge on slock created by a body corporate shall not be and shall be deemed never to have been a Bill of Sale." It was conceded that the goods supplied by Charles Dougherty & Co. Limited constituted " S t o c k" within the meaning of the 1978 Act. In the High Court the Plaintiff Receiver claimed that the reservation of title Clause failed on a number of grounds with the result that he had an entitlement to all the product supplied as part of the assets of the Company in Receivership. The Receiver's claim failed on all grounds in the High Court and he sub- sequently appealed to the Supreme Court on one ground only, namely that condition 9 of the Contract of Sale, which contained the retention of Title Clause, constituted a Bill of Sale of stock and as a result was void by virtue of Section 36 of the 1978 Act. HELD: — This Appeal raised a question of the con- struction of Section 36 of The Agricultural Credit Act 1978. It was conceded that if a Bill of Sale existed that it is one within the mean- ing of the Bills of Sale (Ireland) Act 1879 and 1883. If, pursuant to Section 36, the Bill of Sale of stock be void, what then of the sale — do the goods not revert to the true owner? The answer is that it is only Clause 9, the retention of Title Clause, that is void. Virtually every Section of part III of the 1978 Act deals with Charges on stock created by the owner of the stock in favour of some person or body which advances money to the owner — chattel mortgages of several kinds, but all being of the nature of the raising of money using goods ar chattels as security. Section 36, taken in the context of Part III of the Act, as it must be, was intended and could only be intended to apply to a Bill of Sale given to secure the payment of monies. Con- struing the Section accordingly, the decision of the High Court was upheld and the Appeal dismissed. (Ireland) Limited — Supreme Court (per McCarthy J.) 22 March, 1985 - unreported. Michael Tyrrell INJUNCTION Application for interlocutory injunction against the State must be dealt with in accord- ance with ordinary principles. No general principle stops the Courts from granting an injunction prohibiting the exercise of a statu- tory power. The Plaintiff is a limited liability company, incorporated in Ireland and the owner of three fishing vessels registered in the State. The boats are used for deep water trawling and particularly for fishing for hake. In December 1983 the Minister for Fisheries and Forestry issued a licence to the Plaintiff pursuant to Section 222(b) of the Fisheries (Consolidation) Act 1959 inserted by Section 2 of the Fisheries (Amendment) Act 1983. The licence contained a condition that the Plaintiff's boats were not to be used for sea fishing unless 75% or more of the crew were Bernard Somers -v- James Allen

appear appropriate that any injunction should ever be given against Ireland. The injunction was therefore given against the first and third defendants only and was further modified to permit the first named Defendant to continue to investigate whether the condition was being breached in the period up to the hearing of the action without arresting any of the Plain- tiff's employees or detaining their vessels. Pesca Valentia Limited -v- The Minister for Fisheries and Forestry, Ireland and the A ttor- ney General, Supreme Court (per Finlay C. J.) 21 May, 1985 - unreported. Karl Hayes

Irish citizens or nationals of another Member State of the EEC. The operation of this con- dition was postponed for the 1983/1984 season, but became operative on 17 August 1984. On 11 September 1984 one of the Plain- tiff's vessels was arrested for fishing other- wise than in accordance with the licence on the basis that the entire crew of the vessel were Spanish nationals. The Plaintiffs brought proceedings in the High Court for an order restraining the Defendants from enforcing the condition claiming (a) that the condition was impossible for them to comply with, as Irish fishermen were unwilling to take up employment on the Plaintiff's boats by reason of the length of the sea voyages invol- ved and the hardship of the work concerned and (b) that the material provisions of the Fisheries (Amendment) Act 1983 were incon- sistent with the Constitution and with Euro- pean Community Law and that the Plaintiff company would be put out of business and suffer irreparable loss. On 12 March 1985 Lardner J. in the High Court granted the injunction sought to the Plaintiffs and the Defendants appealed to the Supreme Court. At the hearing of the appeal, the Defend- ants argued that the effect of the injunction was to suspend the exercise by the Minister of a power expressly granted to him by statute to impose a condition of this nature, and to suspend the power of the Attorney General to prosecute a criminal offence created by statute. Accordingly it was submitted having regard to the presumption of consistency with the Constitution which attaches to those statutory provisions, the true test on the hearing of an application for an Interlocutory Injunction was not the otherwise applicable test as to whether the Plaintiff had established a fair question to be tried and secondly as to where the balance of convenience lay. The Defendants contended that the Court should never grant an Interlocutory Injunction which in effect prohibited even for a temporary period the exercise of a statutory power con- tained in a post-Constitution statute or in the alternative that it should only do so in the most exceptional circumstances. On behalf of the Plaintiff it was contended that the application fell to be decided in accordance with the ordinary principles laid down by the Court concerning interlocutory applications and that there were no grounds for applying any different principles, that there was a fair question to be tried and that the balance of convenience was in favour of the Plaintiff whose entire business would be destroyed by a suspension of its fishing activ- ities pending the hearing of the action. The Court held that there was no such general principle as was claimed by the Def- endants. It is the duty of the courts to protect persons against the invasion of their consti- tutional rights or against unconstitutional action. It would be inconsistent with that duty if the court were to be without power in an appropriate case to restrain by injunction action against a person which found its authority in a statutory provision which might eventually be held to be invalid. Not- withstanding the presumption of constitut- ional validity which attaches to the statute in question, the Plaintiff had clearly established that there was a fair question to be tried. The Court confirmed the order of Lardner J. but held that while Ireland may be an appropriate Defendant in the action it did not

Copies of judgments in the above cases are available on request from the Society's Library. The photo- copying rate is lOp per page.

xxxv